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GIBSON, DUNN &CRUTCHERLLPLAWYERS

A REGISTERED LIMITED LIABILITY PARTNERSHIPINCLUDING PROFESSIONAL CORPORATIONS

555 Mission Street, Suite 3000 San Francisco, Californa 94105-2933(415) 393-8200ww.gibsondunn.com

EDettmer~gibsondunn. com

November 23, 2009

Direct Dial(415) 393-8292

Fax No.(415) 374-8444

Client No.T 36330-00001

The Honorable Joseph C. SperoUnited States Magistrate JudgeUnited States District Court for theNorthern District of California450 Golden Gate AvenueSan Francisco, California 94102Re: Perry v. Schwarzenegger, Case No. C 09-2292 VRW

Dear Magistrate Judge Spero:

At the Cour's direction, I write with an update on the status of the parties' negotiationsover a stipulated protective order in this case.As an initial matter, however, Proponents' counsel stated on November 21, and again this

morning, their belief that the Court's Order of November 19 and oral directions to the paries onthe same date, are forestalled by the Ninth Circuit's temporar stay order of November 20.Plaintiffs respectfully disagree with this position; the Ninth Circuit did not stay the Cour'sNovember 19 Order and, in any event, there is no doubt that a protective order wil be beneficialin moving discovery in this case forward fairly and expeditiously.

With respect to the paries' negotiations over the proposed protective order: prior to theirindication on November 21 that the Ninth Circuit's November 20 Order foreclosed thesediscussions, Proponents had proposed a revision to the Cour's standard form of protective order.Proponents' proposed addition would bar from reviewing designated documents any counseloremployee who has "previously been involved ( or) has () intention in the future of being involvedin any organization, association, campaign, group, coalition, or other entity that advocated for oragainst Proposition 8 or for or against any other ballot initiative, constitutional amendment, orstate law (regardless of the state) that advocated for or against same-sex mariage." Nov.19,2009 email from N. Moss (attached hereto as Exh. A).

LOS ANGELES NEW YORK WASHINGTON, D.C. SAN FRANCISCO PALO ALTO LONDONPARIS MUNICH BRUSSELS DUBAI SINGAPORE ORANGE COUNTY CENTURY CITY DALLAS DENVER

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GIBSON, DUNN &CRUTCHERLLPThe Honorable Joseph C. SperoNovember 23, 2009Page 2

Plaintiffs objected to this broad exclusion, but sought to address Proponents' assertedconcern that their strategic plans could be divulged to their "political enemies." Specifically,Plaintiffs offered to exclude "any Counselor employee who held an offcial position in anyprimarily formed ballot committee related to Proposition 8" or a similar organization circulatingpetitions to repeal Prop. 8 in 2010.1 With the exception of this disagreement, by the close ofbusiness on November 20, Plaintiffs and Proponents had agreed upon most of the substantialterms of the stipulated protective order.

Plaintiffs continue to believe that a protective order should be entered in this casepromptly, and Plaintiffs remain amenable to the entry of the Court's standard form of protectiveorder. Plaintiffs respectfully ask the Cour to enter an appropriate protective order without delay.

Ethan D. DettmerCounsel for Plaintiffs

cc: All CounselI 00767527 JDOC

Plaintiffs proposed the following restriction on those who could view "Attorneys' EyesOnly"-designated materials: "any Counselor employee who held an official position in anyprimarily formed ballot committee related to Proposition 8 (see http://cal-access.ss.ca.gov/campaign/measures/detail.aspx?id= 1302602&session=2007) or now holdsan official position in a primarily formed ballot committee that is now circulating petitionsfor a 2010 ballot initiative to repeal Proposition 8. For puroses of this section (7.3) an'official position' is defined as one which authorizes the holder of said position tocontractually bind (either solely or in conjunction with others) the primarily formed ballotcommittee with respect to matters relating to communications disseminated by the committeeor otherwise to spend funds exceeding $10,000 on behalf of the committee."

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Monagas, Enrique A.From:Sent:To:

Nicole Moss (nmoss~cooperkirk.comlThursday, November 19, 20094:53 PMOlson, Theodore S.; McGil, Matthew D.; Tayrani, Amir C.; Boutrous Jr., Theodore J.;Dusseault, Christopher D.; Kapur, Theane Evangelis; Malzahn, Scott; Dettmer, Ethan D.;Piepmeier, Sarah E.; Monagas, Enrique A.; Justice Lazarus, Rebecca; Janky, Mary;jgoldman~bsfllp.com; tuno~bsfllp.com; brichardson~bsfllp.com; rbettan~bsfllp.com;jischiler~bsfllp.com; manuel.martinez~acgov .org; brian. washington~acgov .org;Judith. martinez~acgov .org; claude. kolm~acgov .org; jwhitehurst~counsel.lacounty .gov;Chuck Cooper; David Thompson; Howard Nielson; Nicole Moss; Pete Patterson; JessePanuccio; jcampbell~telladf.org; BRaum~telladf.org; kcm~mgslaw.com;gosling~mgslaw.com; aknight~mgslaw.com; stroud~mgslaw.com; Ibailey~mgslaw.com;therese.stewart~sfgov .org; erin. bernstein~sfgov .org; vince.chhabria~sfgov .org;danny.chou~sfgov.org; ronald.f1ynn~sfgov.org; molle.lee~sfgov.org;christine. van.aken~sfgov .org; catheryn.daly~sfgov .org; Gordon. Burns~doj .ca.gov; TamarPachterPerry v. Schwarzenegger11-19-09 Proposed Protective Order with njm edits. DOCSubject:Attachments:

Dear Counsel:

Pursuant to Magistrate Judge Spero's direction during this afternoon's telephone hearing and as was reiterated in hisorder of earlier today, see Doc. # 259 at 5, that the parties meet and confer regarding an Attorney's Eyes Only ProtectiveOrder, i have attached hereto Defendant-Intervenors' proposed edits to the Protective Order originally proposed byPlaintiffs. This is the same version of the Protective Order previously submitted by Defendant-Intervenors to Plaintiffson October 27, 2009 (with one significant addition addressed below) to which according to my records Plaintiffs had notyet responded.The addition I referenced addressed the concern expressed by Matt McGill on today's call about the need to define whatis meant by "involvement in any organization, campaign, association, coalition group or other entity that advocated foror against Proposition 8 or for or against any other ballot initiative, constitutional amendment, or state law (regardlessof the state) that advocated for or against same-sex marriage." Involvement has now been defined to mean "holding orhaving held any official or unofficial position in the organization, campaign, etc.; volunteering or having volunteered forany organization, campaign, etc.; hosting or having hosted a fundraiser for any organization, campaign, etc; speaking orhaving spoken on behalf of any organization, campaign, etc. in a non-legal capacity; writing or having written newsarticles, editorials, blogs, research papers, white papers on behalf of any organization, campaign etc. Involvement in thiscontext does not include pad legal work that was done on behalf of an organization, campaign, etc., or having signed apetition on behalf of such organization, campaign, etc.;"Defendant-Intervenors believe that such a provision in the protective order is necessary since we know of at least oneattorney, Dennis Herrera, and believe there are likely many more attorneys, staff, experts, etc., who were involved inthe No on 8 Campaign and who are planning to be involved in similar future campaigns. Despite the provisions in theproposed order limiting use of materials to this litigation, the fact remains that once confidential information in thesedocuments is learned it cannot be unlearned even if the documents themselves cannot be used.Such a provision is likewise consistent with Judge Walker's statement at the November 2, 2009 hearing that he wouldentertain an order that limits document production to "named attorneys." Defendant-Intervenors, of course, are not ina position to know what attorneys, paralegals, staff, etc. are working on this case for Plaintiffs and Plaintiff-Intervenors,so the identification of individuals who would be covered by this provision must be left to each sides good faith andprofessionalism.

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Finally, to the extent this provision applies primarily to the City and County of San Francisco, we note that they are notthe party seeking these documents nor is there any reason for them to need access to these documents given thelimited role for which they were permitted to intervene in this case.Given the deadline set by the Court for filing a stipulated order, I ask that you respond by noon pacific tomorrow withany further suggested edits and/or if you believe a phone conversation would be helpful that we set something up fortomorrow so that if we cannot reach an agreement on a stipulated order, we can enlist the Court's assistance assuggested by Magistrate Judge Spero.

I look forward to hearing from you,Nicole Jo MossCooper & Kirk, P.L.L.c.1523 New Hampshire Ave. N.W.Washington, D.C. 20036(910) 270-8768(202) 220-9601 (fax)(202) 423-3237 (cell)

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